Terms and Conditions of Use
Last Updated: October 2018
The following contain our Terms of Service (“TOS”), which govern your use of our Site and Services (both as defined below). If you do not agree to this TOS do not use or access the Site or the Services. If you use the Site or the Services, this TOS constitute a binding contract and agreement between you as the user and Spectra Medical Devices, Inc., 260-H Fordham Road, Wilmington, MA 01887 (“Spectra”).
1. ACCEPTANCE OF TERMS.
The TOS contained herein govern all use by you of the Spectra servers, databases, websites and domains accessed through Spectra’s internet website portals (the “Site”), as well as all services, including the sale of Spectra products, available on or through the Site or otherwise provided by Spectra (the Site and the services are referred to herein collectively as the “Services”). The Site and the Services are owned and operated by Spectra. Access to the Site and the Services is offered by Spectra subject to your acceptance of the TOS and all other operating rules, policies and procedures that may be published from time to time on or through the Site.
BY USING OR ACCESSING THE SERVICES, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN AND THAT MAY BE IMPOSED BY THE TERMS OF ANY PURCHASE ORDER, INVOICE, BILL OF SALE, AND/OR SHIPPING RECEIPT THAT SPECTRA MAY PUBLISH FROM TIME TO TIME IN CONNECTION WITH THE SALE OF SPECTRA’S PRODUCTS THROUGH THE SITE AND THE SERVICES.
IF YOU DO NOT AGREE TO ANY OF SUCH TERMS, CONDITIONS, RULES, POLICIES OR PROCEDURES, DO NOT USE OR ACCESS THE SERVICES.
Spectra reserves the right, at its sole discretion, to modify or replace any of the TOS at any time. It is your responsibility to check this TOS periodically for changes. Your continued use of the Services following the posting of any changes to this TOS constitutes acceptance of those changes. If any change to this TOS is not acceptable to you, your sole remedy is to stop accessing, browsing and otherwise using the Services.
2. YOUR USE OF THE SITE AND SERVICES.
2.1 License to Use.
Spectra grants to each user accessing the Services, a non-exclusive, non-transferable, non-sublicensable right to use the Services: (a) in compliance with this TOS, and (b) to the extent permitted under all applicable laws and regulations (foreign and domestic).
2.2 Prohibited Acts.
You shall not, and shall not permit anyone else to, directly or indirectly: (a) modify, reproduce or otherwise create derivatives of any part of the Services or Site Content (defined below); (b) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of all or any part of the Services (except that this restriction shall not apply to the limited extent restrictions on reverse engineering are prohibited by applicable local law); (c) use any username and password in order to allow unauthorized users to access or use the Services for any purpose; (d) remove or alter any proprietary notices or labels on or in the Services or Site Content; (e) engage in any activity that interferes with or disrupts the Services; (f) engage in any fraudulent activity or activity that facilitates fraud; (g) engage in any activity that could reasonably result in the unauthorized disclosure of private personal information under any applicable law; or (h) use any program, code, algorithm or other methodology to gain unauthorized access to the Services or obtain or attempt to obtain any private personal information, documents, data or other Content (defined below), not purposely made available through the Services by Spectra.
3. SITE CONTENT.
You agree that all material, including without limitation information, data, email addresses, contact information, software, text, design elements, graphics, images, purchase records, shopping cart records and other content (collectively, “Content”), contained in or delivered via the Services or otherwise made available by Spectra in connection with the Services (collectively, “Site Content”) is protected by copyrights, trademarks, service marks, trade secrets, patents or other intellectual property and other proprietary rights and laws. Spectra may own the Site Content or portions of the Site Content may be made available to Spectra through arrangements with third parties. Except as expressly authorized by Spectra in writing or in connection with your use of the intended functionality of the Services, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of any Site Content, or post any Site Content on any other web site or in a networked computer environment for any purpose. Reproducing, copying or distributing any Site Content for any other purpose is strictly prohibited without the express prior written permission of Spectra. You shall use the Site Content only for purposes that are permitted by this TOS and any applicable laws and regulations (foreign and domestic). Any rights not expressly granted herein are reserved.
4. SPECIAL RULES FOR INTERNATIONAL USE.
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable use of the Services. By way of illustration and not limitation, you agree to comply with all applicable laws and regulations (foreign and domestic) regarding the transmission of data, email addresses, solicitations, canvasing and spamming in the United States, Canada or the country in which you reside or the country in which you intend to conduct business over the Internet.
You agree to defend, indemnify and hold Spectra, and its affiliates, and each of its and their respective officers, directors, agents, co-branders, other partners, and employees, harmless from any and all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liability, cost and expense (including, without limitation, reasonable attorneys’ and accounting fees) resulting from any claim, demand, suit, proceeding (whether before an arbitrator, court, mediator or otherwise), or investigation made by any third party (each a “Claim”) due to or arising out of: (a) your use of or connection with the Site and/or the Services; (b) your violation of this TOS; and/or (c) your violation of any rights of another. Spectra shall provide notice to you of any such Claim, provided that the failure or delay by Spectra in providing such notice shall not limit your obligations hereunder. Spectra reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section, and in such case, you agree to cooperate with all reasonable requests in assisting Spectra’s defense of such matter.
6. SERVICE MODIFICATIONS/SUSPENSIONS/TERMINATIONS; CERTAIN DISCLAIMERS.
Spectra reserves the right at any time to, and from time to time may, modify, suspend or discontinue, temporarily or permanently, the Site, the Services (or any part thereof) for any reason or no reason with or without notice.
YOU AGREE THAT FROM TIME TO TIME SPECTRA MAY TERMINATE THE SITE AND/OR THE SERVICES FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICES.
You agree that Spectra shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site or Services.
Spectra is concerned about the privacy of all users of the Site and Services and uses standard security measures. However, due to the nature of Internet and wireless technologies, there is no way to provide complete assurance that security will not be breached. Spectra will not in any case be liable for any unauthorized data access to the maximum extent allowed by law.
7. SITES ACCESSED THROUGH SERVICES.
The Services may provide, or third parties may provide, or the Content may contain, links to other Internet websites or resources, including third-party payment solution providers unrelated to Spectra. Because Spectra has no control over such websites and resources, you acknowledge and agree that Spectra is not responsible for the availability of such websites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, services or other materials on or available from such websites or resources. You further acknowledge and agree that Spectra shall not be responsible or liable for any damage or loss caused or alleged to be caused by or in connection with any use of or reliance on any such Content, advertising, products, services or other materials available on or through any such website or resource, including third-party payment solution providers.
8. SERVICES THAT PROVIDE ACCESS TO PRODUCTS.
8.1 Authorized Users
Certain features of the Services provide a means for certain users, upon registration as an Authorized User as described herein, to view, evaluate, select and purchase products offered for sale by Spectra (the “Product Services”). Upon entry of your username and password where indicated on the Site you will be authorized to use the Product Services for the purposes described herein (“Authorized User”). In order to register as an Authorized User or to otherwise access and use the Product Services you must complete Spectra’s registration forms and receive a username and password from Spectra. If you do not register with Spectra and receive a username and password, you are not an Authorized User and may not use the Product Services. Spectra reserves the right to disapprove, suspend or terminate access by any Authorized User should Spectra consider that it is appropriate to do so in its sole discretion. Without limiting the foregoing, Spectra may terminate your status as an Authorized User and revoke your username and password in the event you are no longer eligible to be an Authorized User because you failed to maintain appropriate licensing credentials necessary to purchase Spectra products through the Product Services.
8.2 Registration as Authorized User
To gain access to Product Services you agree to provide true, accurate, current and complete information about yourself, your business, your licensing credentials and other information as requested by Spectra to confirm that you are eligible to be registered as an Authorized User. If you provide any information that is untrue, inaccurate, not current or incomplete, or Spectra has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Spectra has the right to suspend or terminate your future use of the Product Services (or any portion thereof).
8.3 Authorized User Account, Password and Security
As part of the registration process to become an Authorized User, you will be given a username and password. You are responsible for maintaining the confidentiality of your username and password, and are fully responsible for all activities that occur under your account, including, without limitation, all actions by sub-users registered under your account. You agree to: (a) immediately notify Spectra of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Spectra cannot and will not be liable for any loss, damage or other liability arising from your failure to comply with this Section or from any unauthorized access to or use of your account. In the event of any dispute between two or more parties as to account ownership, you agree that Spectra shall be the sole arbiter of such dispute in its sole discretion and that Spectra’s decision (which may include termination or suspension of any account subject to dispute) shall be final and binding on all parties.
9. TERMINATION OF SERVICES.
Spectra, in its sole discretion, may terminate your revocable license to use the Site, the Services, and/or any Authorized User’s username and password with respect to Product Services, at any time for any reason or no reason, including, without limitation, for lack of use, failure to timely pay any fees or other monies due Spectra, or if Spectra believes that you have violated or acted inconsistently with the letter or spirit of this TOS. You agree that any termination of your license to use the Site or Services may be effected without prior notice, and acknowledge and agree that Spectra may immediately deactivate or delete your account and all related Content and files related to your account and/or bar any further access to such files or the Services. Further, you agree that Spectra shall not be liable to you or any third party for any termination of your right to use or otherwise access the Services. All provisions of this TOS that by their nature should survive termination of your right to use the Services shall survive (including, without limitation, all limitations on liability, releases, indemnification obligations, disclaimers of warranties, and intellectual property protections and licenses). Upon termination, you agree to cease access to the Site and Services.
10. SPECTRA SHIPMENT / RETURN POLICY.
10.1 Spectra Shipping Policy
Spectra only uses third-party carriers for transportation of Spectra products. Spectra will process and deposit all orders placed using the Product Services with the designated carrier within 5 business days, provided that processing may be delayed by high order volume. If shipment is delayed more than 3 business days, Spectra will contact you via email or telephone. Spectra is not responsible for any products damaged or lost during shipment. If your order was damaged during shipment you must file a claim with the third-party carrier.
10.1 Return Procedures / Authorization
Any Spectra products purchased using the Product Services that do not conform to the limited warranty in Section 11 and that are subject to replacement, shall be returned for replacement only in compliance with this Section. You must receive Spectra’s authorization prior to returning any Spectra products to Spectra. You must notify Spectra of any non-conforming products or shipments within 2 business days of receipt and you must receive Spectra’s prior authorization for any return of non-conforming products within 30 days of your purchase date. Spectra’s failure to grant return authorization within 30 days of purchase shall mean that your return request was rejected. Once received, product return authorizations are valid for 30 days. Product returns for products purchased through the Site shall be arranged by calling Spectra customer service at (978) 657-0889. Unless otherwise agreed by Spectra under another customer agreement, unauthorized product returns may be returned to you at your expense, destroyed by Spectra at Spectra’s discretion or subject to additional charges without credit being issued to you.
10.2 Return Procedure
All non-conforming products subject to return shall remain and be returned to Spectra in their original packaging. After obtaining Spectra’s prior authorization for return of any products, each return must include the following information:
- Customer’s name, address and account number.
- Return authorization number.
- Original Spectra order number.
- Lot number and expiration date for relevant Spectra product where applicable.
11. DISCLAIMER OF WARRANTIES.
11.1 Regarding the Site and Services.
THE SITE AND SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. SPECTRA HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. SPECTRA MAKES NO WARRANTY THAT: (A) THE SITE AND SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE SITE AND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE AND SERVICES WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY, SAFETY OR LEGALITY OF ANY CONTENT, PRODUCTS, SERVICES OBTAINED BY YOU THROUGH THE SITE AND SERVICES, OR THE SITE AND SERVICES THEMSELVES (OR ANY PART THEREOF), WILL MEET YOUR EXPECTATIONS, OR (E) ANY ERRORS IN THE SITE AND/OR SERVICES WILL BE CORRECTED. SPECTRA IS NOT RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR THE CONTENT, PRODUCTS, SERVICES, ACTIONS OR INACTIONS OF ANY USER, WHETHER OR NOT AN AUTHORIZED USER OR ANY THIRD PARTY. SPECTRA WILL HAVE NO LIABILITY WITH RESPECT TO ANY WARRANTY DISCLAIMED IN (A) THROUGH (E) ABOVE. THE FOREGOING DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11.2 Regarding Spectra Products.
ANY SPECTRA PRODUCTS PURCHASED USING THE PRODUCT SERVICES WILL CONFORM TO ALL APPLICABLE SPECIFICATIONS AND BE FREE FROM MATERIAL DEFECTS THROUGHOUT THE SHELF-LIFE APPLICABLE TO SUCH PRODUCTS AT THE TIME THE PRODUCTS ARE DEPOSITED WITH A THIRD-PARTY CARRIER, F.O.B. SPECTRA’S PLACE OF BUSINESS. IN THE EVENT OF ANY BREACH OF THE FOREGOING LIMITED WARRANTY, SPECTRA’S SOLE AND EXCLUSIVE OBLIGATION AND YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE REPLACEMENT OF DEFECTIVE AND/OR NON-CONFORMING PRODUCTS AT SPECTRA’S COST. OTHER THAN THIS LIMITED WARRANTY, SPECTRA PRODUCTS AND ALL OTHER MATERIALS ARE PROVIDED “AS-IS.” SPECTRA MAKES NO OTHER WARRANTIES RELATING TO THE PRODUCTS OR ANY OTHER MATERIALS MADE AVAILABLE, EXPRESSED, STATUTORY, OR IMPLIED, WHETHER ORAL OR WRITTEN, AND SPECTRA EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES REGARDING ANY OF THE FOREGOING, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12. LIMITATION OF LIABILITY.
SPECTRA SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WITH RESPECT TO THE SERVICES, ANY SPECTRA PRODUCTS, OR ANY OTHER SUBJECT MATTER OF THIS TOS, FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SPECTRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), (B) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR (C) ANY MATTERS BEYOND SPECTRA’S REASONABLE CONTROL. SPECTRA SHALL HAVE NO LIABILITY WITH RESPECT TO ANY OF THE CONTENT OR ANY CONTENT OF ANY OTHER USER OF THE SERVICES. IN ADDITION, SPECTRA IS NOT AFFILIATED WITH, AND HAS NO AGENCY OR EMPLOYMENT RELATIONSHIP WITH ANY THIRD-PARTY SERVICE PROVIDER USED IN CONJUNCTION WITH THE SERVICES OR ANY OPERATOR AND SPECTRA HAS NO RESPONSIBILITY FOR, AND HEREBY DISCLAIMS ALL LIABILITY ARISING FROM, THE ACTS OR OMISSIONS OF ANY SUCH THIRD-PARTY SERVICE PROVIDER OR OPERATORS. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
IN CONSIDERATION OF BEING PERMITTED TO ACCESS AND USE THE SITE AND SERVICES (AS APPLICABLE), YOU HEREBY RELEASE AND AGREE TO RELEASE SPECTRA, AND ITS AFFILIATES, AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, PARTNERS, AND EMPLOYEES FROM ALL DAMAGES (WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE), LOSSES, LIABILITIES, COSTS AND EXPENSES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH DISPUTES BETWEEN YOU AND THIRD PARTIES (INCLUDING OTHER AUTHORIZED USERS) IN CONNECTION WITH THE SERVICES, YOUR ACCESS AND USE OF THE SERVICES.
IN CONNECTION WITH THE FOREGOING RELEASE, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE 1542 AND ANY OTHER APPLICABLE LAW OR STATUTE, WHICH SAYS, IN SUBSTANCE:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
Notices to you may be made via either email or regular mail to the address in Spectra’s records. The Site and Services may also provide notices of changes to this TOS or other matters by displaying notices or links to notices to you generally on the Services. Any notice from you to us shall be sent in writing to our mailing address at Spectra Medical Devices, Inc., 260-H Fordham Road, Wilmington, MA 01887.
16. SPECTRA INTELLECTUAL PROPERTY
16.1 Trademark Information.
The trademarks, service marks, and logos of Spectra (the “Spectra Trademarks”) used and displayed in connection with the Site and Services are registered and unregistered trademarks or service marks of Spectra. Other company, product, and service names used in connection with the Site and Services may be trademarks or service marks owned by third parties (the “Third Party Trademarks”, and, collectively with Spectra Trademarks, the “Trademarks”). You may not use any Trademark displayed in connection with the Site and Services without the prior written consent of Spectra. The Trademarks may not be used to disparage Spectra, any third party or Spectra’s or third party’s products or services, or in any manner (in Spectra’s sole judgment) that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any site is prohibited unless Spectra approves the establishment of such a link by prior written consent specific for each such link. All goodwill generated from the use of any Spectra Trademark shall inure to Spectra’s benefit.
16.2 Patents and Proprietary Rights.
By purchasing Spectra products, you acknowledge that you will not obtain any rights of any sort in or to any proprietary information of Spectra contained within Spectra’s products and all such information shall remain the sole and exclusive property of Spectra. Spectra does not grant to you any express or implied right or license to its proprietary information, including to any patents, copyrights, or trade secret information included in Spectra’s products. By purchasing Spectra products, you agree that you shall not, directly or indirectly, copy, reverse engineer, disassemble, decompile, translate, modify, or create derivative works from all or any part of Spectra’s proprietary information contained within Spectra’s products.
17.1 Entire Agreement.
Unless otherwise expressly provided in any agreement executed between you and Spectra, this TOS constitutes the entire agreement between you and Spectra regarding your use of the Services and your purchase of products through the Site, superseding any prior or contemporaneous agreements, proposals, discussions or communications between you and Spectra on the subject matter hereof.
17.2 Choice of Law.
This TOS, the Site and Services and your purchase of Spectra products are governed by the laws of the Commonwealth of Massachusetts, without regard to any conflict of laws principles.
17.3 Binding Arbitration.
Any controversy or claim arising out of or relating to this TOS or the provision of the Services or access to the Site shall be exclusively settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Boston, Massachusetts, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Subject to the foregoing arbitration provision, you and Spectra agree to submit to the personal jurisdiction of the courts located within Suffolk County, Massachusetts. Spectra may seek any interim or preliminary relief from a court of competent jurisdiction located in Suffolk County, Massachusetts, to protect the rights or property of Spectra (or its agents, suppliers, and subcontractors) pending the completion of arbitration.
17.4 Waiver; Invalid Provisions.
The failure or delay of Spectra to exercise or enforce any right or provision of this TOS shall not constitute a waiver of such right or provision. No oral waiver, amendment or modification shall be effective under any circumstance whatsoever. If any provision of this TOS is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this TOS shall remain in full force and effect.
17.5 Force Majeure.
In the event Spectra is delayed or hindered in or prevented from the performance of any required act by reason of acts of God, strikes, lockouts, failure of power, restrictive laws, riots, insurrections, acts of terrorism, war or other reason of similar nature not the fault of Spectra, then performance of that act shall be excused for the period of such delay.
17.6 Time to File Claim.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site or Services or this TOS must be filed within two (2) years after such claim or cause of action arose or be forever barred.
The section titles in this TOS are for convenience only and have no legal or contractual effect.